In a recent "fireside chat" before the Tenth Circuit conference, Supreme Court Justice Neil Gorsuch decried the trend towards abusive use of emergency powers (see also this slightly more detailed account):

"Everything is an emergency," he said…. "We've moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we've moved it over to the executive branch. And I just don't think that's a recipe for a healthy democracy over the long term."

Gorsuch is absolutely right about this. We should not allow emergency powers intended to be used only in extreme situations to become a blank check that the executive can wield at will. Sadly, we have increasingly moved in that dangerous direction. Presidents of both parties have abused emergency powers, though Trump - in his second term - has been a particularly egregious offender.

While much of the blame for this state of affairs rests with Congress and the executive branch, Gorsuch and other judges can help by rigorously enforcing constitutional and statutory constraints on emergency powers. As I outlined in more detail in a Dispatch article published last year, courts should engage in strong judicial review of both the meaning of terms like "emergency," "invasion," and "unusual and extraordinary threat," and whether the facts on the ground proves that these dangers are actually present (thereby justifying invocation of extraordinary emergency powers to deal with them). I also rebut the argument that courts should defer to the executive on these kinds of issues, because of the supposedly superior expertise of the latter.

The Supreme Court has in fact constrained executive abuse of emergency powers in several important cases, under both Biden and Trump. Notable examples include the IEEPA tariff case (which I helped litigate) and the Illinois National Guard case (both under Trump), and Biden v. Nebraska (2023) (in which the Court rightly struck down Biden's attempt to use Covid emergency powers as a pretext to forgive over $400 billion in student loan debt). Last year, the Supreme Court also blocked Trump's efforts to swiftly deport Venezuelans under the Alien Enemies Act, a statute that can only be used in the event of an "invasion" or a "predatory incursion" on US territory by a foreign government.

But in each of these cases, the Court never ruled on whether an emergency, "invasion," or other extraordinary circumstance justifying the use of emergency powers was actually present. It instead ruled against the executive on other grounds. In one of the "shadow docket" cases involving the Alien Enemies Act, the Court did rule that the meaning of "invasion" and other terms in the Act is subject to judicial review. But it did not address the question of deference on factual issues. Thus, the extent to which the Court is willing to constrain abuses of emergency powers remains at least somewhat unclear.

To his credit, back in 2022, Justice Gorsuch broke with the other conservative justices, and (along with the three liberals) dissented from a procedural decision that, in effect, required Biden to continue the abusive use of Covid emergency powers as a tool for immigration restrictions. As Gorsuch put it in his dissent, "courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency." 

Judicial review cannot fully solve the problem of abusive use of emergency powers on its own. As noted in my Dispatch article, Congress needs to step in and take measures such as setting strict time limits on executive-declared invocations of emergencies. But the judiciary can, nonetheless, play a valuable role in preventing extraordinary emergency powers from becoming a blank check the president can use whenever he wants.

And, while we cannot rely on the judiciary alone to police abuses of emergency powers, we should also avoid the opposite error of relying solely on Congress. As Gorsuch points out in his compelling concurring opinion in the tariff case, it is very difficult for Congress to pull back delegations of power, if courts interpret them overbroadly:

When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent's authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn't?) will have a strong incentive to veto legislation aimed at returning the power to Congress. Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto. But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.

That is all the more reason for the judiciary to rigorously enforce statutory and constitutional constraints on the scope of delegated powers - especially when we are talking about sweeping emergency powers that endanger civil liberties, threaten the stability of the economy, and have other potentially massive effects.

If anyone has access to the full text of Gorsuch's talk at the Tenth Circuit conference, please send it to me, if you can.

NOTE: For those keeping score, I also called for rigorous judicial review of invocations of emergency powers under Biden. See, e.g., here and here.

The post Justice Gorsuch on Abuse of Emergency Powers appeared first on Reason Magazine.

The argument goes that it is better to have even a questionable Republican-appointed judge on the Fifth Circuit, rather than a proven liberal like Carlton Reeves. I can certainly see the logic here. But I'm not sure it works.

For starters, we should remember that more than 90% of the Fifth Circuit cases are unanimous. For these cases, there is no meaningful difference between Edith Jones and Steve Higginson. For these cases, whether it is Southwick or Butler or Reeves, the outcome would be the same.

What actually matters, of course, is the other 10% of cases. What especially matters are the en banc disputes where the seventeen-member court is usually divided on a raze-thin margin.

Going back at least a decade, I think in nearly every significant ideological en banc case, Judge Southwick has voted with the Democratic- appointees. I'm sure there are exceptions I am forgetting, but in cases that matter, Judge Southwick is virtually indistinguishable from Judge Higginson. (And for what it's worth, I deeply respect Judge Higginson as the leader of the Fifth CIrcuit's progressive wing.)

In 2022, I did a deep dive into Fifth CIrcuit en banc votes. I compared how the Republican-appointed judges vote as compared to Judge Edith H. Jones, who has long been the circuit's conservative stalwart. Judge Southwick had an EHJ score of zero. (Judge Wilson's score was as low as it was because he had only recently been confirmed to the bench.)

Southwick's numbers in that slide were from the Biden Administration. It has gotten even worse during Trump 2.0

Indeed, I presented this paper at the Jackson Federalist Society Chapter, with Judge Southwick in the room. Lest you think I pull my punches in person, I don't. He was a gentleman, and took it graciously. And no, Todd Butler was not there.

Let's assume that Judge Butler is not Sullied, and he is confirmed. Let's also assume that Judge Butler will be a jurisprudential clone of Judge Southwick. Now, the 10% of the cases that matter will have two center-left members. And if Judge Southwick keeps a full caseload, he is likely to sit on several en banc cases each year. Does anyone think Butler will vote against he person who gave him his sinecure? (The two are apparently very good friends as well.) Again, there will now be two center-left members. Judge Butler's confirmation would arguably make some of the 9-8 victories for conservatives would split 9-9. How is that any better than the status quo?

If this is all right, I would much prefer a 75-year old Southwick casting one vote, than Southwick and a 40-something old Butler casting two votes.

The alternative, I suppose, is for 75-year old Southwick to cast one vote for the foreseeable future, and then have Carlton Reeves (born in 1964) cast one liberal vote for the foreseeable future after that. I much prefer this alternative.

If anyone has anything positive to send me about Judge Butler, please do. I've spoken to several people in Mississippi, and all I hear is "trust me, he's conservative." I've heard that before. Has he ever done anything conservative? Has he participated in any conservative civic group (paying FedSoc dues doesn't count)? All I see is a Southwick acolyte who criticizes Justice Scalia and attacks street preachers as domestic terrorists.

The post How Would A Judge Butler Actually Affect The Fifth Circuit? appeared first on Reason Magazine.

I continue to dig through the record of Todd Butler, the new nominee to the Fifth Circuit. I wonder if anyone else did?

Butler's greatest claim to fame is arguing Olivier v. City of Brandon before the Supreme Court. The questions presented were fairly technical:

1. Whether, as the Fifth Circuit holds in conflict with the Ninth and Tenth Circuits, this Court's decision in Heck v. Humphrey bars § 1983 claims seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional.

2. Whether, as the Fifth Circuit and at least four others hold in conflict with five other circuits, Heck v. Humphrey bars § 1983 claims by plaintiffs even where they never had access to federal habeas relief.

The actual facts were not important to the question presented. These were pure questions of law. Yet Butler's briefs took gratuitous shots at Gabe Olivier, a street preacher who was arrested by the City of Brandon.

Butler's brief in opposition to certiorari compared street preaching to "domestic terrorism."

Petitioner presents himself as "a Christian" who wishes to peacefully "share[] his faith on public streets[.]" Pet.6. He likewise did so in the district court, claiming he does not hurl insults and speaks only in a conversational tone to people walking by. ROA.21. Video evidence proves otherwise. On multiple occasions, Petitioner has yelled insults at event attendees, including "whore," "Jezebel," "fornicator," "drunkards," and "sissy." ROA.295-301. The conduct caused disturbances that would have resulted in violence had law enforcement not intervened. ROA.293-301.

Group protests are his normal course of action, with individuals in his group having been found guilty of simple assault for harassing citizens and one court even describing their actions as "domestic terrorism." ROA.398-424. The group has targeted, followed, hurled insults at, spit on, harassed individuals, and, at one point, "began closing in" on a couple.

This passage is beyond insulting. He put "Christian" in scare quotes, as if to doubt Olivier's faith. And the "domestic terrorism" charge is extremely divisive. Again, none of these points were necessary in a boring case about Heck v. Humphreys. But Butler felt compelled to attack the plaintiff.

Olivier's reply brief, filed by Allyson Ho at Gibson Dunn and First Liberty, fired back:

The city begins (at 7-8) by disparaging Olivier's evangelism and states that while he "presents himself as 'a Christian'" the "evidence proves otherwise." But "no official, high or petty, can prescribe what shall be orthodox in * * * religion." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Contrary to the city's over-hyped rhetoric, Olivier "identifies sins he believes are relevant for the community at large" to share the good news that Jesus Christ saves people from their sins.

Olivier is exactly right. The government cannot define who is religious and who is not. If you believe in the Gospel, you have an obligation to tell others your views. What does Butler think preachers do?

One might have thought after the cert grant, Butler would step back from this cliff. After all, he needs votes from Justices Alito and Thomas. But he does not.

The Respondent brief again questions whether Olivier was evangelizing, and repeats the"domestic terrorism" claim:

After it opened, Petitioner traveled to the Amphitheater with a group to, in his words, evangelize. J.A.5. The group's evangelism included using a loudspeaker to call patrons "whores," "Jezebels," "grody," "nasty," "sissies," and other derogatory names.1 Pet.App.21a-23a. They held large signs, some of which depicted aborted fetuses. Pet.App.29a.

FN1: Courts have equated the group's more aggressive conduct, including spitting on people, to "domestic terrorism." C.A.ROA.414.

The Petitioner's reply brief shot back sharply:

The city disparages Olivier's evangelism with inaccurate, unsupported accusations, even equating his peaceful expression with "domestic terrorism." Resp. Br. 3 n.1 (citing C.A. ROA 414). Olivier vigorously disputes this characterization. The prosecution cited by the city involved the conduct of other people in a different location. That prosecution doesn't allege that Olivier participated in the purportedly "aggressive conduct," and there's no support for the city's baseless implication that Olivier "spit[ ] on people." Ibid.; see J.A. 26-27.

Many of President Trump's nominees have done favorable things for religious liberty. But here, Butler actively attacks a Christian, questions his evangelism, and compares him to a domestic terrorist.

Remember when during the Biden Administration parents at school board meetings were called "domestic terrorists"? Senator Hawley ripped Attorney General Garland about this scandal.

Much more to come.

The post Todd Butler Compared Street Preacher In Supreme Court Case To "Domestic Terrorism" appeared first on Reason Magazine.

Louis Geri, 42, of Vineland, New Jersey, was sentenced today in U.S. District Court to 70 months in prison in connection with threatening to detonate more than 100 homemade explosive devices on the steps of St. Matthew's Cathedral during the annual Red Mass attended by U.S. Supreme Court Justices and other senior government officials, announced U.S. Attorney Jeanine Ferris Pirro.

Geri pleaded guilty March 5 before Judge Randolph M. Moss to a count of Hobbs Act extortion by wrongful use of force, violence, or fear, and to a count of possession of an unregistered firearm (destructive device)….

According to the plea agreement, on the evening of Oct. 4, 2025, Geri rode his motorcycle to St. Matthew's Cathedral, on the 1700 block of Rhode Island Ave. NW, and erected a tent on the church's front steps. Inside the tent, he assembled more than 100 explosive devices he had manufactured from materials—including nitromethane, magnesium, charcoal, and thermite—purchased in Arkansas and assembled in Virginia. He also carried a nine-page list of written demands.

The Red Mass, a high-profile annual religious ceremony attended by members of the Supreme Court, Cabinet, Congress, and the diplomatic corps, was scheduled at the cathedral for the following morning.

About 5 a.m. on Oct. 5, 2025, Metropolitan Police Department officers approached Geri's tent while patrolling the area before the service. When officers told him he would need to move, Geri refused and threatened to throw one of his explosive devices into the street to demonstrate its destructive power. He told officers that "several of your people are gonna die from one of these" if federal agents did not come to negotiate his demands.

Geri allegedly demanded, among other things (text converted into a bulleted list):

• hundreds of thousands of dollars in payments to himself and others;
• that federal arrest warrants be issued for all elected government officials and all judges so they could be held as terrorists under the "Patriot Act designation";
• that the President of the United States call on Congress to declare war on the "rogue cartel state" formerly known as Arizona;
• extended hotel stays at the Mayflower Hotel in Washington, D.C.;
• the Supreme Court remove the state of Arizona from the United States, declare it a "foreign enemy," and limit the movements of the residents of Arizona;
• numerous requests to leaders of the Catholic and Jewish faiths, including but not limited to:
  • (i) barring woman from positions that carry legal authority over church holdings and parishes;
  • (ii) excommunicating all Arizona-based Catholics; and
  • (iii) revealing the lie of the Holocaust and removing all social controls based on it, especially in the "Jewish welfare system" in Germany; and finally, an expatriation flight to Japan.

Josh Satter was the prosecutor on the case.

The post Red Mass Explosive Man Asked S. Ct. to "Remove Arizona from the United States" and "Declare It a 'Foreign Enemy'" appeared first on Reason Magazine.

Here are some of his publications:

• A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 HOLY CROSS J.L. & PUB. POL'Y 47, 64 (2008).
• RECIPE FOR DISASTER: ANALYZING THE INTERPLAY BETWEEN THE CASTLE DOCTRINE AND THE KNOCK-AND-ANNOUNCE RULE AFTER HUDSON V. MICHIGAN, 27 Miss. C. L. Rev. 435 (2008).
• HECK, EXCESSIVE FORCE, AND THE FIFTH CIRCUIT, 29 Miss. C. L. Rev. 529 (2009)
• FOREWORD: CELEBRATING THE LIFE AND LEGACY OF THURGOOD MARSHALL, 27 Miss. C. L. Rev. 289 (2008)
• JUDGE SOUTHWICK THE OPINION WRITER, 37 Miss. C. L. Rev. 43 (2018)
• AN INTERVIEW WITH CHIEF JUDGE SHARION AYCOCK, 39 Miss. C. L. Rev. 413 (2021)

I haven't studied the articles carefully, but one through line seems to be a criticism of Justice Scalia.

For example, in his student note, Butler favors Justice Breyer's dissent over Justice Scalia's majority opinion in Hudson v. Michigan:

While Justice Scalia applied the Fourth Amendment balancing test by starting with social costs, Justice Breyer turned first to deterrence.Considering factors such as time, recoverable damages and money spent on litigation, Justice Breyer argued that § 1983 suits are an insufficient deterrence.Also, he swiftly dismissed the notion that "better trained police" provide adequate deterrence.. . . .

Justice Breyer's dissenting opinion in Hudson v. Michigan aptly noted that "the Court destroy[ed] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement" when it refused to remedy the violation with the exclusionary rule.161 While Justice Scalia offered several deterrent substitutes, each is insufficient to ensure law enforcement compliance. . . .

Likewise, internal police procedures are inadequate to deter non-compliance with the knock-and-announce rule. Although Justice Scalia came to the opposite conclusion after noting the "increasing professionalism" of police officers,he failed to discern the principle reason why this increasing professionalism actually exists. As one commentator noted, "the increasing professionalism of police departments that has resulted in more effective internal discipline was itself a result of the exclusionary rule."It follows that if the underpinning is removed, the increasing professionalism will also disappear.

Butler is also very critical of the castle doctrine.

Importantly, critics insist that the Castle Doctrine creates a "trigger-happy" mentality in citizens' minds.The laws receive extensive media coverage and the phrase "shoot first, ask questions later" is often used to describe the Castle Doctrine.One commentator noted that "[the doctrine] sends a very confusing message to the citizens . . . about when they can use lethal force with impunity.". . .

The Supreme Court's decision in Hudson v. Michigan will bolster violent encounters between police officers and homeowners. Although none of the Justices referenced the Castle Doctrine in their opinions, the importance of the doctrine is implicit when considering the practical effects of the case. By removing the incentive to comply with the knock-and-announce rule, the Court left homeowners vulnerable to surprise encounters with law enforcement officers. This vulnerability poses significant problems for both police officers and citizens because of the trigger-happy mindset created by the Castle Doctrine.

Thirty-five states currently remain "Castle Doctrine Free." Legislators in these states should be wary of the Hudson decision because of the prediction set forth in this Note. Instead of falling victim to powerful lobbying efforts, legislators should opt to protect human life by declining to provide citizens with a "shoot first, ask questions later" mentality. Citizens in current Castle Doctrine states may soon wish their lawmakers had done the same.

Butler does not mention the then-pending Heller case or the Second Amendment anywhere in his note. I suspect that most conservatives favor a broad application of the castle doctrine, and do not describe those exercising their right of self-defense as "trigger-happy."

Butler's article in the Holy Cross Law Review argues that Justice Scalia is a positivist. Here, he seems critical of Scalia's "relentless focus on history and tradition." And he at least seems receptive to Justice Brennan's view.

Throughout his entire opinion Justice Scalia relentlessly focused on history and tradition. His attempt to define "liberty" with the use of historical facts reveals his positivistic philosophy and his acceptance of a fixed constitutional meaning. 99 As noted above, Justice Scalia searched the common law and found that family preservation had traditionally trumped the parental rights of unmarried fathers. The essence of his search is akin to the positivistic approach of employing the rule of recognition by looking to social facts and conventions. . . .

The battle between Justice Scalia and Justice Brennan over the meaning of the word "liberty" reveals the answer to the above-mentioned question. Simply put, it is delusional to aspire for unanimity among all decision makers. Our society, although pluralistic, gives credence to majority views. In doing so, we accept a legal system that is predictable, albeit imperfect.

Butler repeats the charge that Scalia is "anti-gay"

The classification of Justice Scalia as a "separationist," however, has not gone completely unchallenged. Many critics contend that Justice Scalia often submits his own view of morality into the law through his judicial opinions. By way of examples, opponents often cite Justice Scalia's dissenting opinions in Lawrence v. Texas and Romer v. Evans.'" These opinions, critics suggest, illustrate Justice Scalia's "anti-gay moral views.""

Butler offers nothing to rebut this slander.

Butler further seems critical of Scalia's "narrow" view that the Constitution is "determinate":

There is no room for discretion, in Justice Scalia's view, because he believes the Constitution is determinate. Consider the statements he provided last month at a Delaware University lecture: "The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that is the end of it. If you want more rights, create them by statute. If you want more constitutional rights, create them by amending the Constitution."In his view, appellate judges engage in "judicial activism" when they broadly define the concept of liberty under the Due Process Clause.' By incorporating a wide array of unenumerated rights into the Constitution, Justice Scalia contends that judges are usurping the role of elected lawmakers. This result is intolerable for him since the rules of adjudication provide no authority for judges to utilize the rules of change. Given Justice Scalia's narrow interpretation of the judiciary's role, rules of change become increasingly important under his legal theory. . . .

More specifically, Justice Scalia refers to his method of textualist constitutional interpretation as originalism. Under this approach, Justice Scalia does not seek to determine the original intentions of the constitutional drafters. 42 Instead, he aims to discern the "original meaning of the text."' Said differently, Justice Scalia believes that the Constitution means the same thing today as it did when it was ratified over two hundred years ago. . . .

Justice Scalia, on the other hand, purports to use the text's original meaning as his only criteria for resolving even difficult constitutional questions. This approach demonstrates his assumption that the Constitution is determinate or, in the alternative, that judges lack the authority to interpret the Constitution when it is indeterminate.

Butler described Scalia's dissent in Stenberg v. Carhart, the partial-birth abortion case, as "stinging." And he suggests this dissent is "the spawn of Justice Scalia's own political agenda."

Justice Scalia's stinging dissent in Stenberg v. Carhart underscores his position. There, the state of Nebraska passed a statute prohibiting partial-birth abortion.The Court, however, overruled the Eighth Circuit Court of Appeals and determined that the Nebraska statute was unconstitutional for the reasons set forth in Planned Parenthood of Southeastern Pennsylvania. v. Casey. Rejecting the underlying premise of Casey, Justice Scalia advocated judicial restraint and chastised his colleagues on the Court for exercising jurisdiction over the case: "If only for the sake of its own preservation, the Court should return this matter to the people - where the Constitution, by its silence on the subject, left it - and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."'

Here is the dissent that Butler thinks is political:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately sayan entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, … and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Which part of this passage does Butler disagree with? You know, the lawyer who actually relegated Roe v. Wade to its rightful place in history is also in Mississippi.

Butler actually says we should have "diversity" on the Supreme Court and not seek more jurists in the mold of Justice Scalia:

At 71 years old, it is unclear how long Justice Scalia will remain on the bench. When he either dies or resigns, his philosophy likely will be debated while confirming a successor. For those who favor predictability and judicial restraint, any member nominated to the Court would be applauded for adhering to a theory of legal positivism. Conversely, others would seek to reject any nomination with even remote similarities to Justice Scalia. Ultimately, it is crucial that we aim for diversity on the Court. In my opinion, the American people are best served when judicial philosophies vary. Intellectual debate sparks creativity and controversy. We need both, perhaps more than ever, to move our society forward.

If there was a Democratic president and a Republican Senate, Butler would be a natural pick. But for President Trump to pick someone who actively criticizes Justice Scalia? There are problems. Much more to come.

The post Todd Butler's Problematic Publications appeared first on Reason Magazine.

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen; at least partially because of the risks presented by the 2020 elections, Majority Leader McConnell has personally contacted eligible judges "to sound them out on their plans and assure them that they would have worthy successors."528 A similar report by columnist Fred Barnes in March 2020 was that Senators McConnell, Grassley, and Graham together decided to urge retirements and had themselves talked to many of the eligible judges.529

As to my personal knowledge, I will borrow from the worn-out joke about whether someone believed in infant baptism: "Believe in it? I've seen it." My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I've seen it . . . or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case. It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.

I've kept that article in mind for the past nine years as Judge Southwick continue to serve in active status. Judge Southwick wrote an entire book about his struggle to get appointed to the Fifth Circuit. He gave a talk at the Houston FedSoc some years ago, and I was struck by someone who was so focused on securing a lifetime sinecure that it seemed to define him. I saw Judge Southwick as a man of principle who would hold his job till he could hold it no longer, and would not step down for alternative considerations. While I usually disagree with Southwick's rulings, I at least gave him credit for sticking to his convictions.

No doubt the White House tried again to nudge Southwick to take senior status. In 2017, he did not find that entreaty "sufficiently encouraging." It seems times have changed.

On Tuesday, September 28, Judge Southwick wrote to President Trump that he plans to take senior status upon the confirmation of his successor. Barely two days later, President Trump announced a nominee to fill the seat. The fix was in.

I am pleased to announce the nomination of Todd Butler to the United States Court of Appeals for the Fifth Circuit! A proud graduate of Mississippi State University and Mississippi College of Law (Graduating summa cum laude from both!), Todd is currently a Partner at Phelps Dunbar in Jackson, Mississippi. He has argued numerous times before the Fifth Circuit, previously clerked for highly respected Judge, Leslie Southwick, and has been a strong defender of Law Enforcement throughout his career. Todd has the unwavering support of Senators Roger Wicker and Cindy Hyde-Smith. The wonderful people of the Great State of Mississippi (one of my favorites!), and the rest of the Fifth Circuit, can count on Todd to protect the Constitution and the Rule of Law. Congratulations Todd! President DONALD J. TRUMP

As far as Trump tweets go, this one is exceptionally lukewarm. Trump can't even point to a single case that Butler handled. Nothing about him being tough on crime or fighting for the Second Amendment or religious liberty. There's nothing to brag about! By the way, Trump calls Judge Southwick "highly respected." Did anyone show Trump Southwick's opinion in the Alien Enemies Act case? Or any of the other en banc votes involving Trump 1.0 and Trump 2.0?

I have never heard of Todd Butler. I spoke at the Jackson FedSoc chapter, and as best as I can recall, he did not attend. Butler's only claim to fame, which Trump does not mention, was representing the government in Olivier v. City of Brandon. There, his client arrested a street preacher for talking to people about the gospel. Butler argued opposite Allyson Ho. He lost 9-0, with a Kagan majority opinion. I understand lawyers have to take clients, but he could have easily handed this case off to someone else. There are dozens of regular SCOTUS practitioners who would have gladly taken this case, and maybe gotten more than zero votes. But Butler kept it himself.

It is painfully obvious that Judge Southwick took senior status with the understanding that Todd Butler, his former law clerk, would take his seat. That offer was "sufficiently encouraging." This is not a case where Southwick cited some pressing health concern which required his immediate resignation. He waited until after the Fifth Circuit heard several huge en banc cases last week, and will hang on till the confirmation of his successor, to make sure his preferred candidate gets through. Of course, he can always withdraw like Judge Wynn.

Moreover, Southwick timed his announcement for shortly before the midterms. Should the Republicans lose the Senate, this might be the last chance for Southwick to get his preferred replacement picked. Moreover, had Southwick announced he would take senior status any time over the past two years, opposition to Butler may have arisen on the right, which could have scuttled the nomination. (Remember in 2019, President Trump nominated another Mississippi judge for the Fifth Circuit, Halil Suleyman "Sul" Ozerden, but that nomination failed after Republicans opposed him. Southwick didn't want his clerk to get Sullied)  The pick was timed, just right, to ensure his preferred candidate gets through, and before a potential flip in the Senate. Like I said, the fix was in.

Todd Butler is not Scott Stewart, the Mississippi Solicitor General who was successful in overruling Roe v. Wade. But we have to remember that all politics is local. For whatever reason, Stewart was not favored by the state senators. Moreover, Senator John Cornyn had no interested in fighting to claim the seat for Texas, where it would actually do some good. As Mike Fragoso noted back in May, leaving now ensures Ken Paxton won't take the seat for Texas. The fix was in.

I'm sure the White House lawyers will say that it is better to replace Southwick with Butler than to roll the dice with whoever President Newsom picks. That may be prove to be right, but we have nothing to go on. On the en banc court, Southwick's vote is virtually indistinguishable from a Biden nominee. We'll see how Butler will vote. I've asked a few people in the know, and no one knows his judicial philosophy.

Butler is not alone with a family affair. Trump's announcement of another district court seat in North Carolina noted that Phillip Aubert clerked for Terrency Boyle. Trump nominated the children of Eighth Circuit judges Benton and Shepherd for district courts in Missouri and Arkansas, respectively. President Biden nominated Judge Julia Gibbons's law clerk, Kevin Ritz for the Sixth Circuit. Biden also nominated Judge Stranch's former law clerk, but she did not make it through. Of course, Justice Breyer was replaced by his former clerk KBJ, and Justice Kennedy was replaced by Justice Kavanaugh.

Frankly, I find this entire idea of hereditary judicial sinecures very unsavory. From the President's perspective, politics make sense. But from the judges' perspective, nepotism does not.

The post When Judges Pick Their Law Clerks As Replacements appeared first on Reason Magazine.

Michael Buschbacher, Managing Partner of Boyden Gray PLLC, is among those who think I have erred. Indeed, he thinks that my work actually supports the other side.

Following is a guest-post from Buschbacher making his case. I am unconvinced, and will reply in a follow-up post. For now, here is what Buschbacher has to say.

*     *     *

Prof. Adler Filed His Suncor Amicus Brief in Support of the Wrong Party

Michael Buschbacher

The occasion for this guest post is Prof. Adler's recent amicus brief submitted to the U.S. Supreme Court in Suncor v. Boulder County, set to be argued next month.[1] Suncor is probably the most important constitutional structure case of this decade and may also be the most economically significant in Supreme Court history. By some estimates, the litigation campaign of which Suncor is part asserts some $28 trillion in total putative damages against a select group of energy companies—nearly an entire year of American GDP.

The central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users, not just for emissions within their own borders, but also for emissions anywhere in the world. If that sounds a bit out there, that's because it is. So far, even some of the hand-picked state courts that have heard these claims have been slow to bite. For example, the Maryland Supreme Court earlier this year rejected similar arguments by the City of Baltimore, concluding that its claims about climate change were all preempted by federal law. Even the pro-climate litigation dissents in that case agreed that Maryland state law could not reach worldwide emissions directly. Several other state courts have reached similar conclusions.

Prof. Adler's brief falls to the "left" of these decisions. But while his brief is offered in support of Boulder County, it also stops well short of the plaintiffs' position that one state or municipality can apply its own law to the rest of the world. Although Prof. Adler opens with broad strokes—"Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by petitioners' conduct," Adler Br. at 2—he later adds a very important caveat: perhaps only the law of the source state (that is, the jurisdiction where the emissions took place) can apply, and everything else is precluded. See id. at 21, 25. "No home cooking," as he's put it elsewhere.

There are several points in the brief where I think Prof. Adler errs or leaves key information out, but it's the no-home-cooking caveat that I want to focus on. In my view, the reading of the Clean Air Act he advocates should require him to take the petitioners' side or, at least, to file on behalf of neither party. Colorado's case is all home cooking. As I'll explain below, Prof. Adler comes out on the plaintiffs' side here only by misdescribing (or misapprehending) the case that Boulder County has actually pled.

But first, some background.

The Law Governing Interstate Pollution. As Prof. Adler points out, state power over in-state pollution was historically very broad and remains broad today. But air and water aren't respecters of state borders. What happens in Vegas (or anywhere else) doesn't necessarily stay there. So, although in-state pollution can be governed by state law, interstate pollution—that is, pollution that originates in one jurisdiction and ends up having an alleged effect in another—was exclusively controlled by federal law from time immemorial. As my colleague Jared Kelson and I explain in our amicus brief for 74 members of the House, application of this principle to interstate air pollution goes back at least to Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

Originally, the federal law in question was federal common law—or "general law," as it was often called, in contrast with specific local law. Erie Railroad Company v. Tompkins did not abrogate this body of law since rules dealing "with air and water in their ambient or interstate aspects," Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972), are "matters essentially of federal character," United States v. Standard Oil Co. of Cal., 332 U.S. 301, 307 (1947).

However, the governing federal law changed in the 1970s, when Congress enacted the core environmental regulatory statutes we still have today: the Clean Air Act, the Clean Water Act, etc. These statutes not only displaced federal common law, they also significantly federalized pollution policy, albeit in a novel way. Rather than set uniform national command-and-control regulations as the default rule, the Clean Air Act and Clean Water Act mostly imposed a regime somewhat misleadingly described as "cooperative federalism." Basically, Congress makes an offer the states can't refuse, using funding strings and sanctions to pressure them to regulate stringently enough to meet federal pollution-control targets set by EPA.

Prof. Adler spins all this as Congress "preserving" a large amount of state discretion. That's a rosy version of the history as to traditional areas of state territorial sovereignty—the Clean Air Act in particular drove much American industry overseas contrary to state wishes—but in many areas Congress did at least leave states room to choose how to reduce in-state pollution. As Prof. Adler acknowledges, there are some exceptions where Congress took away even traditional in-state regulatory authority when doing so was necessary to avoid a patchwork of inconsistent state regulations over, e.g., motor vehicle emissions. But he's right that, generally, Congress did not disturb the pre-existing balance of federal and state power over emissions regulation.

The problem for Boulder County is that under that pre-existing balance, states had no authority to apply their own law to out-of-state air emissions, which had always been governed by federal common law. That cuts strongly against Boulder County, since nothing in the Clean Air Act purports to give states any new power to impose their own specific state law on emissions that originate outside their borders, much less authorizes them to do so with the "exceedingly clear language" required if Congress "wishes to significantly alter the balance between federal and state power." Sackett v. EPA, 598 U.S. 651, 679 (2023) (cleaned up). Indeed, the various Clean Air Act provisions that expressly address interstate and international air emissions concerns all presuppose the continued existence of traditional territorial limits on governmental authority. See 42 U.S.C. §§ 7402, 7410(a)(2)(D), 7415, 7426, 7506a. Prof. Adler says nothing about these provisions.

Where "Climate Nuisance" Fits In. This brings me to the first point of disagreement with Prof. Adler. He suggests that climate "nuisance and trespass" claims would have been matters of state law prior to the Clean Air Act, and that they are thus part of the broad array of state powers "preserved" by that statute. I'm skeptical. Boulder County's suit is almost entirely about conduct far outside of Colorado. The Suncor complaint doesn't target specific emissions from individual facilities that have caused it some particularized harm; instead, it seeks to hold companies liable for purported undifferentiated and future harms that originate on a global scale from emissions everywhere.

Pace Prof. Adler, that looks nothing like a claim against a neighboring "city whose sewer discharged across the state line." Adler Br. at 6 (describing Carmichael v. City of Texarkana, 94 F. 561 (C.C.W.D. Ark. 1899)). Indeed, Carmichael highlights how different Boulder County's theories are from historic nuisance claims. Mr. Carmichael lived in Bowie County, Texas, and sued Texarkana, Arkansas, in Arkansas federal court for sewage discharge that harmed his property. Mr. Carmichael's claim was that Texarkana built a sewer system with "one main sewer leading to a point immediately opposite plaintiff's homestead, about eight feet from the state line, on the Arkansas side" that flowed into a stream on his homestead. Carmichael, 94 F. at 562. The court ordered Texarkana to abate the nuisance, noting that this outcome followed "an almost unbroken line of authorities" from courts across America, as well as English practice—i.e., the general or federal common law, rather than any distinct local law of Mr. Carmichael's home state of Texas. Id. at 572.

But Boulder County didn't pursue this type of claim—a federal common law claim in federal court. There's no mystery why. Climate litigants initially did allege federal common law claims in federal court. The Supreme Court (in an opinion by Justice Ginsburg) in American Electric Power Co. v. Connecticut, 564 U.S. 410, 429 (2011), unanimously shut that down, holding that climate nuisance claims must be dismissed because the Clean Air Act displaces federal common law for interstate air emissions.

Displacement and Preemption. This brings me to my second, and primary, disagreement with Prof. Adler. He argues that the Clean Air Act's displacement of federal common law opens the door for state law to apply. "Federal common law may once have preempted state attempts to control interstate air pollution under state law, but federal common law has been displaced, and no longer serves that function." Adler Br. at 3. The Clean Air Act's displacement of federal common law thus silently unpreempts at least some state common law. His key case here is International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Ouellette was brought by Vermont landowners against a New York paper mill under Vermont law for pollution discharges into Lake Champlain. The Court rejected the plaintiffs' argument, holding that Vermont law could not apply to pollution that took place outside of that state's borders. As discussed above, interstate nuisance had originally been covered exclusively by federal common law. Ouellette holds that, although the Clean Water Act displaced that body of common law, Congress did not thereby tacitly authorize states to apply their own distinct local law to pollution discharged from other states. But Ouellette added that the Act's savings clause "specifically preserve[d]" the ability of courts to apply the law of the source state to those discharges. Id. at 497. The Court therefore remanded the case for proceedings under the proper state law, as authorized by the Clean Water Act.

Prof. Adler asserts that Ouellette supports the conclusion that the Clean Air Act at least permits climate change claims under the law of the source state, Adler Br. at 19–22, which he calls a "fundamental weakness of the substantive argument" made by defendants. See also Jonathan H. Adler, Displacement and Preemption of Climate Nuisance Claims, 17 J.L. Econ. & Pol'y 217, 255 (2022) ("Accordingly, state law claims may proceed, so long as they rely upon the law of the source state[.]"). Prof. Adler is right that defendants argue that climate torts simply don't fit even under Ouellette, but he skips over their larger alternative point that Ouellette's holding applies with equal force to the Clean Air Act: so, at most, it's law of the source state or bust, "no home cooking." See Pet. Br. at 33–34.

I think the petitioners are right in arguing that climate torts are not the kind of source-state action that Ouellette preserved. Suncor isn't about a discharge of sewage across state lines, but about global carbon emissions all mixed in the troposphere. Regulating that with a combination of state tort laws would displace federal preeminence and risks the "chaotic confrontation between sovereign states" that Ouellette sought to avoid. 479 U.S. at 496–497.

But put this all aside for the moment. Could Boulder County have pled a case under the law of 50 states and 194 other countries seeking relief on a pro rata basis? Based on Prof. Adler's no-home-cooking rule, perhaps so.

Did it? No.

This is where Prof. Adler goes astray. To be sure, Boulder County's opposition brief attempts to suggest that the choice of law has not yet occurred, as if—eight years in—nobody had yet figured out what law the County was invoking. But that eleventh-hour pivot is not credible. For example, page 1 of Boulder County's brief to the Colorado Supreme Court says that "Plaintiffs seek damages under Colorado tort law," adding later that "[l]iability in this case is based on Colorado's law of trespass, private and public nuisance, unjust enrichment, and civil conspiracy." And the County said the same thing to the trial court too: "Plaintiffs filed this case under Colorado's common law…and its Consumer Protection Act…." In other words, Boulder County made its choice.

The question before the Supreme Court is thus whether the state law under which Boulder County has pled its claims can apply to emissions elsewhere: Ouellette says that it cannot. That choice of law is preempted. There is no reason for the Court to wait to say so. On Prof. Adler's reasoning, then, the Court—at the very least—should reverse and remand the same way it did in Ouellette.

Perhaps Prof. Adler agrees. But if so, why did he file his brief in support of the plaintiffs rather than defendants, or in support of neither party?

[1] Full disclosure: my colleague Jared Kelson and I submitted an amicus brief on behalf of 74 members of Congress in support of Defendants in Suncor. Another colleague, Jen Hardy, submitted a (very interesting) brief on behalf of Prof. Prakash in support of Defendants as well. Prof. Eugene Volokh also co-authored an excellent brief about the free speech implications of the case.

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Here are Professor Adler's prior posts on Suncor and related climate litigation:

• Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
• Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
• Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
• Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
• D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
• William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
• Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
• Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
• Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
• Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
• William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
• Placing Climate Tort Litigation in Context (Updated), Nov. 7, 2025;
• A Second Round with William Barr on Litigation Over Interstate Pollution, Dec. 2, 2025;
• Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit, Feb. 4, 2026
• Climate Change Goes Back to the Supreme Court -- Colorado Edition, Feb. 23, 2026.
• Previewing Suncor Energy v. Boulder County, Mar. 6, 2026.
• Amicus Brief in Suncor Energy v. County Commissioners of Boulder County, Aug. 3, 2026.
• Supreme Court Term to Start Hot, Aug. 6, 2026
• As Suncor Approaches, Justice Alito Recuses, Sept. 28, 2026.
• Justice Alito Says Recusal in Suncor Energy v. Boulder County a "Difficult Judgment Call", Sept. 30, 2026

The post Buschbacher: Did Prof. Adler File His Amicus Brief for the Wrong Side in <i>Suncor</i>? appeared first on Reason Magazine.

The day after the Court's term concluded, he left the country to teach at a summer program for law students in Malta, organized in part by the South Texas College of Law, where I teach. Before he departed, Roberts joked that he was retreating to an "impregnable island fortress." Students found Roberts was in very good spirits, no doubt enjoying the respite from the pressure.

I've often thought about this remark. Roberts has been under siege from the left and the right for the last quarter century. (I am responsible for much of that angst.) Whether or not this criticism affects Roberts's decisions, he does not respond in kind. He has given very few interviews, and when he speaks up, it is to defend the judiciary as a whole, and not him in particular. My one interaction with the Chief was pleasant enough.

I don't know that Roberts has been back to Malta, but his regular "impregnable island fortress" is Hupper Island, a small island about 90 minutes from Portland, Maine. I hadn't given much thought of this spot since Roberts had a seizure at his summer home in 2007. Since he joined the Court, Roberts and his family would seek solace from the swamp at Hupper Island after the Court dismisses for the term. But of late, despite the Chief's best efforts at steering a middle course, the people of Maine have been intent on making Roberts's life miserable. They protest outside his home on kayaks and accost him in public. Even his friends are shamed from attending events with the Roberts family.

I was not aware of these changes. What happens of Hupper Island stays on Hupper Island. Until the New York Times got to it. Jodi Kantor wrote a lengthy expose about how the neighbors feel. She interviews a few of Roberts's friends and far more of his foes. We learn nothing about the Court, or Roberts's decision. Unlike the silly story about Martha Ann Alito's flags, there is no allegation that Roberts did anything wrong. The sole effect, and indeed purpose, of this article, is to show how Roberts is alienated in his family summer home. We learn nothing about Roberts, but learn lots about the awful liberals of Hupper Island. I fear this piece may make it impossible for Roberts to return in the future.

To make things even worse, Kantor outs Roberts's daughter as a liberal. She has done nothing to put herself in the public eye. She had the audacity to defend her father, whom she loves. The Daily Beast blares, "Conservative Justice's Daughter Outs Herself as Secret Liberal." No. Not even close. Becca Shaw Glaser--a columnist who urged neighbors to give the Chief the middle finger--outed Roberts's daughter.

Only the Old Gray Lady could me me sympathetic to the Chief. Even John Glover deserves a refuge from scoundrels like me.

The post Somehow the <i>N.Y. Times</i> Made Me Sympathetic To Chief Justice Roberts appeared first on Reason Magazine.